Delhi District Court
State vs . Atul Sharma on 6 November, 2015
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 69/15.
Unique Case ID No. 02405R0116492015.
State Vs. Atul Sharma
S/o Sh. Devender Prasad Sharma,
R/o WZ-655, Ist Floor, Gali No.26,
Sadh Nagar, Palam Colony,
New Delhi.
Date of Institution : 09.9.2015.
FIR No. 594 dated 07.12.2014.
U/s. 354 IPC.
P.S. Palam Village.
Date of reserving judgment/Order : 02.11.2015.
Date of pronouncement : 06.11.2015.
JUDGMENT
1. The accused Atul Sharma had been chargesheeted by the prosecution for having committed the offences u/s. 354/376/377/506 IPC.
2. In this case, FIR has been registered on 07.12.2014 on the following statement of the prosecutrix namely 'A' (real name withheld in order to conceal her identity) :
"................ I am a housewife. Earlier I alongwith my family was residing at Indira Park, Sagarpur, Delhi, where Atul s/o Devender Prasad alongwith his elder brother Ashwani was residing as a tenant in our house SC No.69/15. Page 1 of 26 since August/September, 2012. As Atul was having a bad eye upon me, we evicted him from our house in March, 2014. Thereafter, he had been harassing me by making calls upon my mobile no. 9877629331 from his mobile no. 9891494333 and also used to stop my way. However, I did not lodge any complaint against him as he used to threaten me to defame me. Today at about
3.30 p.m., I alongwith my maid was going to our Indira Park house in my i-10 car for fetching some goods. Atul tried to stop my car near Athithi Bhawan, near Manglapuri Subzi Mandi. I came out of the car and Atul abused me, hit my chest with his hand and tried to tear off my clothes. However, I somehow saved myself and returned home. I narrated the whole incident to my husband. Thereafter, I alongwith my husband reached the house of Atul and narrated everything to his mother. I also made a call at telephone no.100 and then came to the police station on my own alongwith my husband. ................"
3. The aforesaid statement of the prosecutrix was recorded by SI Kavita, who prepared rukka and got the FIR registered u/s.354 IPC. She also commenced the investigation. The statement u/s.164 Cr.PC of the prosecutrix was got recorded on 12.12.2014 wherein she mentioned that she was having friendship with the accused and her husband got to know about the same in the month of March, upon which he asked the accused to vacate his room. She further stated that their friendship continued even after her family shifted to Dwarka but later on she came to know SC No.69/15. Page 2 of 26 that he is involved with some other ladies also and she stopped talking to him. However, the accused gave beating to her on 28th October and threatened her that in case she keeps distance from him, he would show her photographs and text messages to her husband. She changed her mobile number but the accused again came to her house after about one or two days, beat her and took her new number. Thereafter, he called her to his office one or two times alongwith some money and also misbehaved with her. She also mentioned that the accused had committed rape upon her on 18th or 20th of the month.
4. The prosecutrix was got medically examined in DDU Hospital on 15.12.2014, during the course of which she told the doctor that apart from being raped on 18.11.2014, she was also subjected to anal intercourse as well as oral sex.
5. Accused was granted anticipatory bail by the Sessions Court on 17.12.2014. He was formally arrested by the IO on 08.1.2015.
6. After completion of the investigation, the IO prepared the Charge Sheet and submitted the same to the concerned court.
7. Upon committal of the case to the court of Sessions, Charge u/s.354 IPC, u/s.376 IPC and u/s.506 IPC was framed against the accused on 24.9.2015. The accused denied the charge and hence trial was held.
8. The prosecution has examined seven witnesses to SC No.69/15. Page 3 of 26 bring home the guilt of the accused. The accused was examined u/s.313 Cr.PC on 30.10.2015 wherein he admitted that he was having friendship with the prosecutrix but denied that he had molested her or raped her. He further stated that he has been falsely implicated in this case. According to him, the prosecutrix was having consensual physical relations with him and she had even accompanied him to various places outside Delhi on several occasions where they used to stay together for the nights also. They had talked to each other several times on phone on 07.12.2014 also till 3 p.m. and later on police officials came to his house alongwith prosecutrix and her husband at about 5 p.m. and he was told that the prosecutrix has lodged a complaint of rape against him. He did not lead any evidence in defence.
9. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire material on record. The Ld. Counsel for complainant also assisted Ld. APP during the course of arguments. Both the prosecution side as well as the defence side took me painstakingly through the evidence on record to project their case. The prosecution argued for conviction of the accused whereas the defence pleaded for his acquittal.
10. The prosecutrix has been examined as PW1. She deposed that the accused was residing as a tenant in their house no.25/3, Gali No.36, Indira Park, Sagarpur, New Delhi, from 2012 to March, 2014. She developed friendship with the accused during that period which was not to the liking of her husband and hence they asked the accused to vacate their house. They also shifted from Indira Park to their another house no.111D, Sector-2, SC No.69/15. Page 4 of 26 Pocket-2, Dwarka, New Delhi, in May, 2014. However, she continued to have telephonic talks with the accused thereafter also. The accused used to call her from his mobile no. 9891494333 upon her mobile no. 9871629331. The accused had demanded money on loan from her on various occasions. She used to lend money to him from time to time but he did not return the loan amount to her.
11. She further deposed that she came to know in the month of October, 2014 that the accused is involved with some other girl also and she thought it advisable to discontinue her friendship with him and to keep distance from him. The accused came to her house on 28.10.2014 in the evening when she was present alone. He abused her and beat her severely. He threatened her that she shall have to meet him as and when he calls her or otherwise, he would send her photographs and text messages to her family members. She stated that after about 3 or 4 days, the accused asked her to meet him at his office and to give him Rs.15,000/- to Rs.20,000/-. Accordingly, she visited his office at Kapashera. He met her in the basement of the office and she gave him Rs.15,000/-. Thereafter, she changed her mobile number but the accused again came to her house on 18.11.2014. At that time, she alongwith her two children, one of whom is handicapped, was present in the house. The accused committed forcible sexual intercourse with her and also took her new mobile number. He also clicked her nude photographs. About 3 or 4 days thereafter, the accused again called her and asked her to reach his office alongwith money. She went to his office and the accused again met her in the basement. She handed over a sum of Rs.
SC No.69/15. Page 5 of 2620,000/- to him. He touched her inappropriately on various body parts at that time.
12. She further deposed that on 07.12.2014, she alongwith her maid Mansi was going in her Hyndai i-10 car to their Indira Park house to fetch certain goods from there and accused met them on the way near Manglapuri vegetable market. He was on his motorcycle. She did not stop her car but the accused followed them. She had to stop the car at some distance. She rolled down the windshield to ask him what the matter was, the accused manhandled her and touched her breasts by his hands. The maid, who was in the car, intervened and the accused left on his motorcycle. The maid Mansi suggested her that they should follow him upto his residence and inform his family members about his evil deeds. Hence she followed the accused in the car and reached his house. She told his mother about his evil deeds but his mother started quarrelling with her. Her mobile phone got broken during the struggle. When they started going down through the stairs, the accused's mother followed them and cut her hairs from behind by some instrument. Upon reaching the parking area, she made a call to her husband from the mobile phone of her maid. Meanwhile, accused also reached there. He caught her and started kissing her and also touching her breasts as well as waist. Her husband reached there and made a call at telephone no.100. Police officials reached there and took them as well as the accused to the police station.
13. She also stated that the accused started touching her feet in the police station and requested her not to make any SC No.69/15. Page 6 of 26 complaint against him. SI Kavita, who was present in the police station, also advised her not to make any complaint against the accused and threatened her that her husband would kill her if she lodges complaint against the accused. SI Kavita further advised her to solemnize marriage with the accused saying that he would maintain her properly. Thereafter, her statement Ex.PW1/A was recorded by SI Kavita. She further proved her statement u/s.164 Cr.PC as Ex.PW1/B which was recorded on 11.12.2014. She was taken to DDU Hospital on 15.12.2014 where her medical examination was conducted.
14. In the cross examination, she deposed that she has three children, the eldest one being a daughter aged 13 years, the middle one being the son aged 11 years, who is handicap i.e. neither able to walk nor talk and the youngest is also a son aged 2 years. She stated that Mansi was working in their house since May, 2014 and her timings were from 10 a.m. to 8 p.m. in their house. She was working in Aanganwari but had to leave the job the year 2014 as accused used to come there and harass her. She denied that she had gone on a pilgrimage to Mata Vaishno Devi temple alongwith the accused and stated voluntarily that she had gone there in June, 2014 alongwith her husband but accused also reached there separately on his own and met them. She admitted that she and the accused clicked various joint photographs at various places on the way to shrine and near the shrine. She admitted that they had reached Mata Vaishno Devi temple on 27.6.2014. She stated that she and her husband had also clicked photographs with her mobile phone but the same got broken in the quarrel on 07.12.2014. They had not got those photographs SC No.69/15. Page 7 of 26 developed. Her husband was not having mobile phone with camera.
15. She admitted that the photographs Ex.PW1/D1 to Ex.PW1/D7 were taken during the aforesaid trip to Mata Vaishno Devi. She also admitted that she and the accused are seen in the two photographs whereas she alongwith her minor child is seen in three photographs and she alone is seen in the remaining two photographs. She further admitted that she alongwith accused is seen in photographs Ex.PW1/D8 to Ex.PW1/D10, which were taken in the year 2014 when she was having friendship with the accused. She denied that her relations with her husband were not cordial since after the marriage but admitted that she had filed complaints in CAW Cell in the years 2002 and 2014. She did not remember whether she had filed a complaint in CAW Cell in the year 2005 also. She admitted that she had filed a complaint in P.S. R.K. Puram also in May, 2014 but clarified that it was not against her in-laws and she had filed the same as somebody else used to mark her attendance in the post office where she was posted. She stated that she was working as an agent for a small saving account in the post office and admitted that she was not an employee of the Department of Post & Telegraph. She also admitted that the agents are not required to mark attendance in the post office and explained that she had made complaints as somebody was signing the work done by her in the post office which work was not in fact done by her.
16. She did not recollect whether she was using mobile nos. 9971709714 and 9971709195. She could not say whether she SC No.69/15. Page 8 of 26 was talking to the accused from these two mobile numbers. She admitted that her husband had beaten her on 31.3.2014 and she had made a call at telephone no.100 but denied that her husband did so for the reason that she used to talk to the accused. She admitted that the documents Ex.PW1/D11 and Ex.PW1/D12 are in her handwriting and bears her signatures at point A. She explained that she had written document Ex.PW1/D11 to show it to her family members and the accused had forced her to write the document Ex.PW1/D12. She did not know whether a settlement had taken place between herself, her husband, accused and his brother pursuant to call at telephone no.100 on 31.3.2014. She denied that she used to go alongwith accused almost on every Sundays to have breakfast at Sukhdev Dhaba in Murthal.
17. She deposed that she had submitted a handwritten complaint in the police station on 07.12.2014 but SI Kavita did not receive the same. She did not remember what she had mentioned in her call to telephone no.100 on that day. She did not complain to the senior police officials against SI Kavita that she is refusing to receive her handwritten complaint. She stated that SI Kavita had in fact taken the handwritten complaint from her and kept the same with her. She submitted a written complaint in this regard to the DCP the next day. She proved carbon copy of the said complaint dated 09.12.2014 addressed to DCP South West, Dwarka, as Ex.PW1/C. She admitted having not mentioned in the said complaint Ex.PW1/C that SI Kavita had received her handwritten complaint and kept the same with her but did not register the FIR on the same. She stated that she had gone through the statement Ex.PW1/A before signing the same and had SC No.69/15. Page 9 of 26 told SI Kavita that she wants to say something more, upon which SI Kavita told her to say in the court whatever she wants to say.
18. She stated that she did not make any call at telephone no.100 on 28.10.2014 when the accused had beaten her severely. She did not narrate the incident to her husband as the accused was having her photographs and letters. She got treatment from M/s. Mittal Clinic, Janakpuri, for her injuries suffered in the incident. She did not give the treatment papers to the IO during the course of investigation. When her husband asked her how did she sustain injuries, she told him that she had fallen down. She had not informed her husband and her parents that the accused is demanding money from her. She did not raise any alarm during the incident of rape dated 18.11.2014 as she had become scared of the accused. She did not apprise anybody about the said incident. She did not lodge any complaint against the accused regarding the said incident and mentioned the same for the first time in her statement u/s.164 Cr.PC Ex.PW1/B. She stated that she was having physical relations with her husband continuously after 18.11.2014.
19. She admitted that Manglapuri Bus Terminal is near Manglapuri vegetable market and the vegetable market is a crowded place. She also admitted that it is vey difficult to drive the car through the vegetable market. She did not raise any alarm when the accused started touching her inappropriately. She did not make any call at telephone no.100 at the time of said incident dated 07.12.2014. She did not show her the broken mobile phone to the IO. She had got the mobile phone repaired but did not SC No.69/15. Page 10 of 26 produce any receipt of repair charges before the IO. She stated that she had shown to a police constable the spot where the accused had misbehaved with her on 07.12.2014. She further denied all the suggestions put to her.
20. The husband of the prosecutrix has been examined as PW2. He deposed that on 07.12.2014 his wife alongwith their maid Mansi had left in their Hyundai i-10 car for their another house in Indira Park to fetch certain goods from there. At about 5 p.m., she received a call from the maid Mansi from her mobile phone saying that Atul Sahrma had met them on the way and he misbehaved with his wife, abused her and also touched her inappropriately. Mansi further told him that they followed Atul Sharma and reached his house to inform his parents about his action but his parents also misbehaved with them. Mansi requested him to reach there immediately. Accordingly, he reached that place and met his wife outside the house of the accused. His wife made a call at telephone no.100 from his mobile phone bearing no. 7840056061. PCR officials reached there. PCR officials entered into the house of the accused and the accused was apprehended. Accused was taken to police station. He alongwith his wife and maid also reached the police station where statement of his wife was recorded by SI Kavita.
21. He further deposed that SI Kavita called him on 22.1.2015 asking him to produce the maid Mansi before her for recording her statement but by that time Mansi had left their household and he told SI Kavita that he does not know whereabouts of Mansi.
SC No.69/15. Page 11 of 2622. In the cross examination, he deposed that he does not know whether his wife was having friendship with accused Atul. He denied that his wife had filed several complaints against him in CAW Cell but stated voluntarily that she had filed a complaint against him in CAW Cell in the year 2014 on a petty issue. He further deposed that his statement was not recorded in this case and only inquiries were made from him. He denied having mentioned to the IO that his wife had returned to their house and narrated the incident to him and then he accompanied her to the house of the accused.
23. He did not recollect the mobile number of maid Mansi. He stated that the face of the lady seen in the photograph Mark-A resembles to that of Mansi but cannot say that it was the photograph of Mansi. He stated that he does not know the father's name of Mansi or her address or her present contact mobile number. He stated that she might have worked in their house for about 2 or 3 months only and during that time, she used to reside in Madhu Vihar but could not tell the exact address. He could not tell the time when the statement of his wife was recorded in the police station as the same was not done in his presence.
24. The maid Mansi @ Poonam Chauhan has been examined as PW5. She deposed that she had been working as a maid in the house of the prosecutrix for about six months before 07.12.2014 and she used to cook food in their house. She left work on 07.12.2014 itself. She further deposed that she reached the house of the prosecutrix on 07.12.2014 at about 4.30 p.m. to SC No.69/15. Page 12 of 26 prepare evening meals. Before she could proceed to prepare meals, the proseuctrix asked her to accompany her to some house in Indira Park, from where certain goods had to be fetched. When she alongwith prosecutrix was going in her car towards Indira Park, after passing through the vegetable market on the way, a motorcycle stopped in front of the car. The prosecutrix also stopped the car and rolled down the windshield. The person on the motorcycle, whose name came to be known as Atul, came near the prosecutrix, put his hand inside the car and touched her cheeks and chest inappropriately. He also tried to hug the prosecutrix. She got infuriated and asked him why he is doing so. Thereafter the prosecutrix suggested her that they should go to his house to complain his mother about his actions. Accordingly, they reached his house. Accused had already reached there. They met his mother and the prosecutrix complained to his mother about what he had done but she was not prepared to believe it and declared that her son cannot do such acts. She stated that when the prosecutrix took out her mobile phone to make a call to the police, accused's mother waived her hand which touched the mobile phone and it fell down. Then the prosecutrix borrowed her phone and made a call to her husband. Prosecutrix's husband reached there after about 10 to 15 minutes and made a call to the police. Thereafter, she returned home. She had become so scared about the incident that she stopped working in the house of the prosecutrix from that day.
25. In the cross examination, she stated that she has not brought any identity document with her but can produce her identity proof, if asked to do so. She deposed that she worked in SC No.69/15. Page 13 of 26 the house of the prosecutrix for about 4 or 5 months only. She used to work from 9 a.m. to 11 a.m. in the morning and from 4.30 p.m. to 6.00 p.m. in the evening. She used to work in 2 or 3 more flats in the same society and her timings of work in all the flats were same. She stated that there used to be a guard at the gate of the society and whosoever intended to enter the gate of the society, was required to make entry in the register at the gate. She also used to make entry in the register at the gate. She never saw the prosecutrix and her husband quarrelling with each other or residing separately from each other.
26. She had seen the accused for the first time on that day i.e. 07.12.2014. She came to know about his name as Atul when they reached his house and his mother addressed him as Atul in their presence. She denied that she left the work in the house of the prosecutrix in February, 2014. She admitted that the public persons were present at the spot where the incident took place. They did not raise alarm at the time of incident and did not seek help from the persons present there. They did not make any call at telephone no.100 from the spot. She could not tell the mobile number which she was using on the said date but stated that she is using the same mobile number even today also. She had brought her mobile phone alongwith her and stated that the number can be checked from it. She stated that her mobile phone has been in working order and in continuous use since 2014.
27. PW6 SI Kavita was the initial IO of this case. She deposed that DD No.29A, which was recorded pursuant to the call made at telephone no.100 regarding molestation of a lady near SC No.69/15. Page 14 of 26 Manglapuri Subzi Mandi, was entrusted to her for suitable action. The prosecutrix and her husband were produced before her in the police station by the Duty Officer. She made inquiries from the prosecutrix and recorded her statement Ex.PW1/A, upon which she prepared rukka and got the FIR registered. She also recorded statement of the prosecutrix's husband. She then visited the spot of incident alongwith prosecutrix and prepared a rough site plan of the spot at her instance. She asked the prosecutrix to produce their maid servant before her on the next day for recording of her statement. Pursuant to her notice u/s.41.1.(a) Cr.PC dated 08.12.2014, the accused jointed the investigation on 09.12.2014. She interrogated him.
28. She further deposed that she got the statement u/s. 164 Cr.PC of the prosecutrix recorded on 11.12.2014, in which she stated that she had been raped also earlier by the accused and the accused had issued threat to her. Accordingly, sections 376 IPC and 506 IPC were added to the FIR. She then searched for the accused but he could not be found. She sent the prosecutrix to DDU Hospital on 15.12.2014 for medical examination where the prosecutrix told the doctor that she had been subjected to unnatural sex also. Accordingly, section 377 IPC was also added to the FIR. She reached the house of the prosecutrix on 16.12.2014 to record statement of their maid but was told that the maid has left work on the date of incident itself. Since the accused had obtained anticipatory bail, she formally arrested him on 08.1.2015. She again visited the house of the prosecutrix on 22.1.2015 to record statement of the maid and that time prosecutrix's husband gave in writing that they are not aware about the whereabouts of SC No.69/15. Page 15 of 26 the maid. She also recorded his statement.
29. In the cross examination, she deposed that the spot of incident, as mentioned in DD No.29A, was Athithi Bhawan, Sadh Nagar, near Manglapuri Subzi Mandi. She stated that the distance between Athithi Bhawan and Manglapuri would be around 1 km. She also admitted that Subzi Mandi Manglapuri remains crowded throughout the day and there are shops on both sides of the road from Manglapuri Subzi Mandi upto Athithi Bhawan, Sadh Nagar. She stated that the prosecutrix had shown the spot midway between Athithi Bhawan, Sadh Nagar and Manglapuri Subzi Mandi where the incident had taken place. She alongwith prosecutrix had reached there at about 9 p.m. whereas the incident had taken place at 3.30 p.m. She made inquiries from the nearby shopkeepers who told her that they did not know what had happened on the road during the day as it is a busy road. She did not meet any eye witness to the incident during the course of entire investigation.
30. She further deposed that she has recorded the statement of the prosecutrix in presence of her husband and she did not make any addition or alteration in the same. She recorded her statement in the verandah. She did not notice any visible injury mark on the body of the prosecutrix when she recorded her statement in the police station. She admitted that there is a security guard on the gate of the society where the prosecutrix resides and whosoever has to enter through the gate, is required to make entry in the register at the gate. She proved the writing, which was handed over to her by the prosecutrix's husband on SC No.69/15. Page 16 of 26 22.1.2015 as Ex.C1. She deposed that neither prosecutrix nor her husband made any call to their maid in her presence nor did they give her mobile number or residential address. They even did not disclose the name of their maid to her at any stage of investigation. She stated that the maid had not accompanied the prosecutrix or her husband to the police station on 07.12.2014 and they told her that the maid is at their house looking after their children.
31. PW7 Inspector Mena Yadav was the investigating officer of this case for a very brief period after 04.7.2015. By that time, the investigation had almost been completed by the previous IO i.e. PW6 and even rough Charge Sheet had been prepared and submitted to the prosecution, upon which certain objections have been raised. She summoned the prosecutrix for removal of those objections and recorded her statement. Upon her asking, prosecutrix produced her maid Poonam @ Mansi before her after about one month and she recorded the statement of the maid.
32. In the cross examination, she deposed that she did not check identity document of Mansi at the time of recording of her statement. Mansi had requested her not to mention her mobile number in the statement and also that the police officials should not visit her house. She believed the representation of the prosecutrix that the lady produced before her is the maid Mansi. She stated that the same lady appeared before this court as PW5. However, she could not say with certainty that the name of the said lady is, in fact, Poonam @ Mansi as she had not checked her identity document. She further deposed that she had obtained the SC No.69/15. Page 17 of 26 call detail records of the two mobile numbers which are mentioned in the statement of the prosecutrix Ex.PW1/A and annexed them alongwith Charge Sheet. She did not find any site plan of the crime spot in the case file when the same was handed over to her by MHC(R).
33. The prosecution case, in short, is that the accused committed forcible sexual intercourse with the prosecutrix at her residence on 18th or 20th November, 2014, besides having made explicit sexual overtures towards her in the basement of his office building at Kapashera on 30th or 31st October, 2014 and he then molested her on 07.12.2014 when she alongwith her maid was going in her Hyundai i-10 car.
34. As noted already herein-above, the FIR has been registered only regarding alleged incident of molestation that is stated to have taken place on 07.12.2014. There is no mention of the incident dated 30th or 31st October, 2014 or the rape incident dated 18th or 20th November, 2014 in the FIR. The FIR has been registered on the statement Ex.PW1/A of the prosecutrix recorded by SI Kavita on 07.12.2014 itself in the police station.
35. The prosecutrix has mentioned for the first time in her statement u/s.164 Cr.PC Ex.PW1/B that the accused had called her to his office in the last week of October, 2014 and when she reached there, he misbehaved with her in the parking at the basement floor by touching her inappropriately. In the same statement, she also mentioned for the first time that the accused came to her house on 18th or 19th (probably in the month of SC No.69/15. Page 18 of 26 November, 2014) and committed forcible sexual intercourse with her.
36. The prosecutrix had not deposed about any incident of molestation related to the last week of October, 2014 in her deposition before this court. However, she has reiterated that the accused committed forcible sexual intercourse with her at her house on 18.11.2014.
37. The failure to mention the rape incident dated 18.11.2014 in the FIR statement Ex.PW1/A makes the version of the prosecution doubtful in this regard. She has stated in the cross examination that she had gone through the statement Ex.PW1/A before signing the same and had told SI Kavita that she wants to say something more, upon which SI Kavita told her to say in the court whatever she wants to say. She further stated in her cross examination that the next day, she submitted a written complaint Ex.PW1/C in this regard to the DCP. The complaint Ex.PW1/C is dated 09.12.2014. Perusal of the said complaint reveals that inappropriate conduct of SI Kavita towards the prosecutrix is highlighted in the same. However, it is nowhere mentioned in the same that the prosecutrix had been raped by the accused on 18.11.2014 and the offence of rape may also be added to the FIR. The prosecutrix has also not mentioned in the said complaint Ex.PW1/C that she had submitted a handwritten complaint to SI Kavita and SI Kavita did not act upon the same.
38. It is evident from the deposition of the prosecutrix that she did not apprise her husband even about the rape incident SC No.69/15. Page 19 of 26 dated 18.11.2014. She also did not tell her husband that the accused is calling her again and again to his office at Kapashera and demanding money from her. The testimony of her husband (PW2) also shows that he was totally in dark about what used to transpire between his wife and the accused. However, the prosecutrix has herself deposed that her husband was aware about her friendship with the accused, which was not to his liking and for this reason, they had asked the accused to vacate their house. It nowhere appears from the deposition of the prosecutrix that the accused had threatened her not to narrate the rape incident or the factum of their relations to anybody. What can be gathered from the entire testimony of the prosecutrix is that the accused had threatened her not to keep away from him and and if she did so, he would send her photographs and text messages to her family members. In my opinion, this should not have prevented the prosecutrix from narrating the rape incident and other incidents of molestation to her husband. In any case, her husband was aware about her friendship with the accused and if the accused would have shown her photographs and text messages to her husband, that would not have created any untoward and explosive situation as it would not have caught him by surprise.
39. The evidence on record further shows that the prosecutrix had accompanied the accused for a pilgrimage to Mata Vaishno Devi in June, 2014. She has admitted in her cross examination that the photographs Ex.PW1/D1 to Ex.PW1/D7 were clicked during that trip at various places on the way to shrine and near the shrine. She has tried to explain that she had gone for the SC No.69/15. Page 20 of 26 pilgrimage alongwith he husband and the accused had reached there separately on his own and met them there. However, she has not produced any photograph showing her alongwith her husband in that trip to Mata Vaishno Devi. Further PW2 has also not deposed about any such trip alongwith his wife to Mata Vaishno Devi in June, 2014. This indicates that the prosecutrix was very intimate with the accused which was known to her husband, as otherwise, it would not have been possible for her to accompany the accused alongwith her minor child for the aforesaid pilgrimage which would not have taken less than three to four days. Evidently, the prosecutrix was alone with the accused during that trip. Therefore, the accused could have easily enjoyed sexual relations with her during that period, if he desired so. In view of these kind of relations between the prosecutrix and the accused, it is highly improbable that the accused would molest her in the basement of his office building or would commit forcible sexual intercourse with her in her house on 18.11.2014.
40. The version of the prosecutrix is otherwise also not believable as she has been making improvements in it at every stage. During her medical examination, she has gone to the extent of stating to the doctor that she was subjected to oral as well as anal sex also by the accused. However, she did not reiterate so in any of her statements recorded during the course of investigation or in her deposition before this court. Her conduct shows that she is not a reliable witness.
41. Admittedly, the document Ex.PW1/D12 is in the handwriting of the prosecutrix and bears her signature at point A. SC No.69/15. Page 21 of 26 It shows that the prosecutrix and the accused used to talk to each other on phone about four or five times daily. However, she has mentioned in the said writing that the relations between her and the accused are like Devar and Bhabhi (brother in law and sister in law) whereas her husband suspects otherwise and therefore her husband would be responsible if anyting happens to her. The prosecutrix has stated in her cross examination that the accused forced her to write the same but has failed to explain when, where and in what circumstances, did the accused force her to write the same. The explanation of the prosecutrix is not acceptable at all. This document is dated 27.3.2014. The another document Ex.PW1/D11, which also is admittedly in the handwriting of the prosecutrix, bears the same date i.e. 27.3.2014. In this writing, the prosecutrix has mentioned in detail the ill treatment and torture meted out to her by her husband.
42. The perusal of the aforesaid two documents clearly reveals that the husband of the prosecutrix was very cruel towards her, which may have led her to develop friendly relations with the accused and she used to talk to him several times daily, which was not to the liking of her husband, who suspected infidelity on her part. It may be noted here that the prosecutrix remained in touch with the accused even after the accused was forced to vacate their house. She used to go with him for outings and spend nights with him. Her conduct towards accused makes the allegations of molestation and rape highly improbable.
43. So far as the incident dated 07.12.2014 is concerned, that too does not appear to be believable. There are material SC No.69/15. Page 22 of 26 contradictions in the version of the prosecutrix, her husband (PW2) and her maid (PW5) in this regard.
44. In the FIR statement Ex.PW1/A, the prosecutrix has stated that after the accused molested her near Athithi Bhawan, near Manglapuri Subzi Mandi, she returned home and narrated the whole incident to her husband. Thereafter, she alongwith her husband reached the house of the accused and narrated everything to his mother and also made a call at telephone no.
100. In her statement u/s.164 Cr.PC Ex.PW1/B, she has mentioned that when the accused molested her, her maid suggested that they should go to his house and therefore they followed him upto his house where the accused and his mother again quarrelled with them. The accused again molested her there and then she alongwith her husband and the maid reached the police station. She has reiterated the same version in her deposition before this court.
45. PW2 has also deposed that upon receipt of a call from there made at about 5 p.m. on 07.12.2014, he reached the house of the accused and met his wife. His wife made a call at telephone no.100 whereafter PCR officials reached there, who apprehended the accused. Then he alongwith his wife and the maid reached the police station. Accused was also brought to the police station.
46. The maid appearing as PW5 has given a different version. She has deposed that she had returned home from the house of the accused and did not go to the police station alongwith the prosecutrix and her husband. She further deposed SC No.69/15. Page 23 of 26 that she became so scared about the incident that she stopped working in the house of the prosecutrix even from that very day itself.
47. The IO (PW6) has deposed that the maid had not accompanied the prosecutrix and her husband to the police station on 07.12.2014 and they told her that the maid is at their house looking after their children. She has further deposed that the prosecutrix and her husband did not produce the maid before her till the time the investigation of this case remained with her i.e. 04.7.2015. According to her, the prosecutrix and her husband did not provide her either the mobile number of their maid or her residential address. They even did not disclose to her the name of the maid at any stage of the investigation.
48. It is thus evident that the prosecutrix and her husband made every effort to keep away the main eye witness to the incident dated 07.12.2014 i.e. their maid from the investigating officer. There could have been no reason for them to do so other than that the incident had been fabricated by them. Even if it is to be believed that the maid had left work from their household on the same day i.e. 07.12.2014, in that case also their duty would have been over by providing to the IO the name, mobile number and the residential address of the maid. They did not do so deliberately. They ultimately produced the maid Mansi before another investigating officer (PW7) in August, 2015. However, it cannot be said with certainty that the lady named Poonam @ Mansi, who has appeared before this court as PW5 was the same maid who was working in the household of prosecutrix on SC No.69/15. Page 24 of 26 07.12.2014 as the IO had not verified her identity by any mode at all. She just believed the words of prosecutrix that the lady produced before her is the maid Mansi.
49. In view of these circumstances of the case, in which the lady named Poonam @ Mansi was produced before the investigating officer after about eight months of the incident without disclosing her name, mobile number and residential address to the IO till then, no reliance can be placed upon her version at all.
50. Even otherwise also, as pointed out herein-above, the prosecutrix in her statement u/s.164 Cr.PC Ex.PW1/B and in her deposition before this court, has stated that she alongwith her maid followed the accused to his house after the incident of molestation but in her FIR statement Ex.PW1/A, she has stated that she returned home and narrated the whole incident to her husband and thereafter she alongwith her husband reached the house of the accused and narrated the version to his mother. It may be further mentioned here that she has stated in the cross examination that she had signed this statement Ex.PW1/A after going through it. She did not mention to the IO at that stage that the incident has not been mentioned correctly in the said statement. This too indicates that the version of the prosecutrix in this regard is totally doubtful.
51. Further the incident is stated to have taken place in a very crowded market place but still neither the prosecutrix nor the maid raised any alarm. They did not call anybody for help. They SC No.69/15. Page 25 of 26 did not make any call at telephone no.100 from that spot even as both of them were having mobile phones. The decision to follow the accused to his house and to apprise his mother about his acts appears to be very unusual in the facts and circumstances of the case.
52. Hence I do not find any credible or trustworthy evidence on record to hold the accused guilty. The version of the prosecutrix is vacillating and not consistent with her statements recorded during the course of investigation. There is no other evidence on record to lend assurance to her version. Her conduct towards the accused does not indicate that she may have been molested or raped by him. The defence raised by the accused that there had been consensual physical relations between him and the prosecutrix seems more probable in the facts and circumstances of the case.
53. Therefore the accused is hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 06.11.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
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